Appeal from the Order Entered October 24, 2007, Court of Common Pleas, Philadelphia County Civil Division at No: 3340, October Term 2000.
The opinion of the court was delivered by: Donohue, J.
BEFORE: BENDER, DONOHUE and FREEDBERG, JJ.
¶ 1 Appellant James Charles Kiak ("Kiak") appeals from the order dated October 17, 2007 and entered October 24, 2007, granting summary judgment in favor of Appellee Crown Equipment Corporation ("Crown") in a product liability action filed by Kiak. The trial court found that this case was controlled by our recent decision in Arnoldy v. Forklift L.P., 927 A.2d 257 (Pa. Super.), allocatur denied, 595 Pa. 710, 939 A.2d 889 (2007), and the law of federal preemption. For the reasons that follow, we reverse.
¶ 2 On November 4, 1998, Kiak was injured while on the job at Victualic Co. America, a foundry located in Easton, Pennsylvania that manufactures couplings to join pipes for sprinkler systems and fire protection. Kiak's injury occurred when a Crown model 30TSP forklift being operated by a co-worker pinned Kiak between two boxes and nearly amputated his foot.
Crown manufactured the forklift involved in the accident in 1997, and it was one of eight 30TSP forklifts sold to Victualic in 1998.
¶ 3 On October 24, 2000, Kiak filed a complaint against Crown and Omnilift, Inc., averring counts of negligence, breach of warranty, and strict product liability regarding an allegedly defectively designed back-up travel alarm system on the 30TSP forklift. In his complaint, Kiak alleged that although the forklift had a functioning back-up travel alarm and a strobe light, he was unaware that the forklift was near him until it was just a few feet away and that as a result he was unable to get out of the way in time to avoid injury.
¶ 4 In 2003, prior to the commencement of trial, Kiak withdrew the claims of negligence and breach of warranty, settled with Omnilift, Inc., and proceeded to trial against Crown only on strict liability. On February 4, 2003, the jury returned a verdict in favor of Crown. On February 14, 2003, Kiak filed a post-trial motion contending, inter alia, that the trial court erred in refusing to incorporate two proposed limiting instructions to the jury regarding the evidence of the negligent conduct of the co-worker operating the forklift and evidence of the warehouse safety rules. On January 27, 2004, the trial court denied this post-trial motion, and Kiak proceeded to file an appeal.
¶ 5 On December 2, 2005, this Court vacated the jury verdict and remanded the case back to the trial court. Kiak v. Crown Equipment, Corp., 894 A.2d 829 (Pa. Super. 2005). Crown appealed this decision, but on December 26, 2006, our Supreme Court denied Crown's petition for allocatur. Crown Equipment Corp. v. Kiak, 591 Pa. 665, 916 A.2d 634 (2006). Thereafter, on September 10, 2007, Crown filed a motion for summary judgment with the trial court arguing, inter alia, that the case was controlled by this Court's subsequent decision in Arnoldy v. Forklift, L.P., 927 A.2d 257 (Pa. Super. 2007), allocatur denied, 595 Pa. 710, 939 A.2d 889 (2007). The trial court agreed, and by order dated October 17, 2007 and entered October 24, 2007, granted summary judgment in favor of Crown.
¶ 6 This timely appeal followed, in which Kiak contends that the trial court should not have relied upon Arnoldy in granting summary judgment in favor of Crown. Our standard of review for motions for summary judgment is well settled:
Pursuant to Pa.R.C.P. 1035.2(2), a trial court shall enter judgment if, after the completion of discovery, an adverse party who will bear the burden of proof at trial fails to produce "evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury." See Rapagnani v. Judas Co., 736 A.2d 666, 668-69 (Pa. Super. 1999) (summary judgment properly granted when "the record contains insufficient evidence of facts to make out a prima facie cause of action or defense, and, therefore, there is no issue to be submitted to a jury"). A motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. Swords v. Harleysville Ins. Cos., 584 Pa. 382, 389-90, 883 A.2d 562, 566-67 (2005). In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992).
Phillips v. Selig, 959 A.2d 420, 427 (Pa. Super. 2008).
¶ 7 Based upon our review of the record on appeal in this case, we conclude that the trial court's reliance on Arnoldy was misplaced, as the facts presented in this case differ markedly from those in Arnoldy. While both Arnoldy and this case involve pedestrian injuries resulting from forklift collisions that allegedly could have been prevented by various safety devices, the similarities end there. In Arnoldy, the plaintiff/appellant argued that the forklift that struck him "lacked any warning system when it was moving in reverse." Arnoldy, 927 A.2d at 260. Specifically, the forklift in Arnoldy allegedly "lacked an audible backup alarm, rearview mirrors, any form of beacon or strobe lighting, or any other safety device that would adequately protect individuals from injury caused by the forklift moving in reverse." Id. at 260 n.2. The plaintiff/appellant argued that the manufacturer failed to "install additional safety devices" necessary to make the forklift safe. Id. at 266.
¶ 8 Based on these facts, in Arnoldy this Court concluded that under applicable Occupational Safety and Health Administration ("OSHA") regulations, the duty to select appropriate safety devices rests with the user of the forklift, not the manufacturer. Id. Permitting a state products liability ...